Delaware Statutory Rape Laws

Statutes governing Delaware's age of consent, associated criminal charges, available defenses, and penalties for conviction.

In Delaware, it is illegal for an adult (someone 18 or older) to have sex with a minor (someone 15 or younger), even if the sex is consensual. Those who break the law have committed statutory rape.

Statutory rape laws are premised on the assumption that minors are incapable of giving informed consent to sexual activities. Their incapacity is written into the statute—hence the term, “statutory” rape. The age of consent can vary among states, and some states differentiate between consensual sex between minors who are close in age (for example, two teenagers of the same age), as opposed to sex between a minor and a much older adult.

For more information on statutory rape and the history of this crime, see Statutory Rape.

Statutory Rape

Statutory rape is prosecuted under Delaware’s sexual assault and rape laws and includes sexual contact or intercourse between an adult and a minor who is 15 years old or younger. It also includes intercourse between an adult who is 30 or older and a 16 or 17 year old minor (unless the marital exemption applies, discussed below).

Within those categories, the offense is broken further into several categories based on what conduct occurred—sexual intercourse, penetration, or contact may all be prosecuted (and punished) differently.

Rape in the first degree includes sexual intercourse with a victim younger than 12 years old, when the defendant is 18 years old or older.

Rape in the second degree includes sexual contact involving some penetration (however slight) with a victim younger than 12 years old, when the defendant is 18 years old or older.

Rape in the third degree involves sexual intercourse or penetration with a victim who is 15 or younger when the defendant is at least ten years older than the victim.

Rape in the fourth degree involves sexual intercourse or penetration with a victim who is 15 or younger, or when the victim is younger than 18 and the defendant is 30 years old or older.

Unlawful sexual contact in the first degree involves sexual contact with a victim who is 13 or younger.

Unlawful sexual contact in the second degree involves sexual contact with a victim who is 14 or 15 when the defendant was more than four years older than the victim.

(11 De. Code Ann. § 770, 771, 772, 773, 768, 769.)

Statutory Rape Marital Exemption

Delaware has a marital exemption for statutory rape, to protect married minors who are 16 or 17 years old and their adult spouses who are older than 30.

Normally, minors are legally incapable of giving consent to having sex; so for example, if Jen, a 16 year old willingly has sex with Tony, her 32 year old boyfriend, Tony can be charged with rape, since Jen is not legally capable of giving consent in the first place.

But if Jen and Tony are married and living in Delaware, Tony need not fear criminal charges for having consensual sex with Jen. This is because Delaware has a marital exemption to the Delaware statutory rape laws.

However, if Tony were to rape Jen (force her to have sex against her will), he would have no protection under the law even if the two are married. That is, the exemption covers only statutory rape, not sexual battery or related crimes.

Penalties

Penalties for statutory rape vary according to the offense under which it is charged.

Rape in the first degree is a class A felony. Penalties include at least 15 years in prison.

Rape in the second and third degree is a class B felony. Penalties include at least two (and up to 25) years in prison.

Rape in the fourth degree is a class C felony, which incurs up to 15 years in prison.

Unlawful sexual contact in the first degree is a class D felony, which incurs up to eight years in prison.

Unlawful sexual contact in the second degree is a class G felony, which incurs up to two years in prison.

Sex Offender Registration

State law requires, in addition to the applicable fines and prison time, that people convicted of certain sexual crimes (including statutory rape) must register as sex offenders.

(11 Del Code Section 4121(a)(4).)

Defenses to a Statutory Rape Charge

Unlike normal rape charges, consent is not usually a defense to statutory rape. Statutory rape laws make minors legally incapable of giving consent to sexual activities. Therefore even if the minor “consented,” the sexual activity was nonetheless illegal and the defendant may be convicted of rape, unless the marital exemption applies (as discussed above), or if the parties were both 16 or 17 under the state’s Romeo and Juliet exception.

Named after Shakespeare’s young lovers, “Romeo and Juliet” exceptions are intended to prevent serious criminal charges against teenagers who engage in consensual sex with others close to their own age. In Delaware, there is a Romeo and Juliet exemption for consensual sex between two people who are 16 or 17years old; or when there is sexual contact (but not intercourse) between a 14 or 15 year old minor and a defendant who is not more than four years older than the minor.

And, like most states, mistake of age is not a defense in Delaware. Defendants accused of statutory rape often claim that they had no reason to know that their partner was underage. They may argue that the victim herself represented that she was older than she was, and that a reasonable person would have believed her. But in Delaware, even a reasonable mistake as to the victim's age will not be a defense to a charge of statutory rape.

See a Lawyer

If you are facing a statutory rape charge, consider consulting with an experienced criminal defense attorney who regularly practices in your area. Numerous defenses apply to sexual assault charges, including those involving statutory rape, and a lawyer can evaluate the strength of the prosecution’s case against you and help develop any defenses that might apply to your case.

A lawyer can often negotiate with the prosecutor for a lesser charge or a reduction in penalties (such as, for example, probation instead of prison time); and will know how prosecutors and judges typically handle cases like yours.